Recognition of the contract of the MKO MFO for a microcredit microloan as invalid, to collect the amount of expenses for the payment of state fees and representative expenses

Sofi Finance Microfinance Organization LLP (hereinafter referred to as the Lender) and ASHT (hereinafter referred to as the Borrower) signed a microcredit agreement No. 902674006 dated August 20, 2020 (hereinafter referred to as the Agreement). In clause 1.2 of the Agreement, which stipulates that, in accordance with the Borrower's application, the amount of the micro-loan is 25,000 tenge. The microcredit in accordance with clause 2.1 of the Agreement was provided by transferring the amount specified in clause 1.2 of the Agreement to the Borrower's bank/card account no.KZ32722C000021.... in JSC “JSC KASPI BANK". Later, when the Borrower wanted to pay off the microloan debt, she was perplexed by what had been stolen. Everything would have ended on the above-mentioned Agreement, but alas. To our great surprise, the Borrower and the Lender allegedly concluded a micro-loan agreement No. 902674006 dated August 20, 2020, with only the amount of KZT 135,000 already provided (hereinafter referred to as the Agreement-2), which the Borrower was not going to take and did not receive in the future, which is confirmed by the statement on Kaspi Gold for the period from 08/17/20 by 17.09.20 of the Borrower. With fright and bewilderment, the Borrower contacted the Lender's branch to clarify this agreement, which appeared from nowhere, hoping that this Agreement-2 was formed due to a system error. But no, the staff confirmed that the Contract-2 is not a consequence of any mistake, but is 100% valid. The borrower was even provided with a paper-based Contract-2, as well as a repayment schedule for the micro-loan.

Recognition of the contract of the MKO MFO for a microcredit microloan as invalid, to collect the amount of expenses for the payment of state fees and representative expenses

Having studied the Agreement-2, concluded for 135,000 tenge and all other documents related to this agreement, we had the following questions: In clause 1.2 of the Agreement, which stipulates that, in accordance with the Borrower's application, the amount of the microcredit is 135,000 tenge. According to clause 2.1, a Micro-loan is provided by transferring the amount specified in clause 1.2. of the Agreement to the Borrower's bank/card account no. KZ32722C0000219..... in JSC “JSC KASPI BANK". However, according to the Borrower's statement on Kaspi Gold for the period from 08/17/2020 to 09/17/2020, it is confirmed that there was no charge in the amount of KZT 135,000 from JSC Halyk Bank of Kazakhstan IIC KZ05601877100064..., there was no charge. The employees of the Lender's company found out that the money was transferred to a certain Yelzhan Usenov through Kazpost JSC to the card 4189-73XX-XXXX-4537. This information is also confirmed by an extract that was issued for the Check by the staff of the Sofi Finance MFO. The lender should take into account that the Borrower did not apply for permission to transfer to a third party, especially Yelzhan Usenov. According to P. 38, 38.1, The Rules for Granting Micro-Loans to Sofi Finance MFO, which stipulates that if the MFO makes a positive decision to issue a Micro-Loan to the Client, the MFO provides a Micro-Loan to the Borrower in the form of: 38.1. a one-time transfer of the Amount of the micro-loan specified in the Application/In the Offer, to the Client's Account – with the electronic method of submitting the Application/Offers. Also, the moment of providing money to the Client is recognized: 40.1. for the electronic Application method, the time of receipt of money to the Client's Account. According to P. 79 of the Agreement-2, where the secret of providing a micro-loan may be disclosed only to the Borrower, to any third party on the basis of the Borrower's written consent given at the time of his personal presence in the MFO, to the credit bureau for micro-loans provided in accordance with the laws of the Republic of Kazakhstan, as well as to the following persons. Also, during the clarification of this misunderstanding, it turned out that in the Borrower's personal account on the tengo website.kz addresses, e-mail and contacts have been changed.

Obviously, these changes were made by hacking. Based on the above, we believe that the actions of the Lender are aimed at fraud by abuse of trust, which contradicts Articles 189, 190 of the Criminal Code of the Republic of Kazakhstan. Naturally, the Borrower applied to the SU DP of Almaty with an application for making loans in her name, without her knowledge by third parties in the microfinance company of Almaty. According to Asilova Sh., It was registered with the ENDR for No. 2075000310 ..., on the grounds of a criminal offense under art. 190, Part 2, paragraph 4, of the Criminal Code of the Republic of Kazakhstan. According to art . 21 of the Law of the Republic of Kazakhstan "On Microfinance activities", where the secret of providing a micro-loan can only be disclosed to the borrower, to any third party on the basis of the borrower's written consent given at the time of his personal presence in the microfinance organization, to the credit bureau for micro-loans provided in accordance with the laws of the Republic of Kazakhstan. It should be noted that according to clause 4.4 of the Agreement-2, the MFO is obliged to: 4.4.5. prior to the conclusion of the assignment agreement, notify the Borrower of the possibility of transferring rights (claims) to a third party, as well as the processing of the Borrower's personal data in connection with such assignment via SMS notifications and/or e–mail; 4.4.6. notify the Borrower of the transfer of the right (claim) to a third party via SMS notifications and/or emails within thirty calendar days from the date of conclusion of the assignment agreement, indicating the purpose of further payments to repay the microcredit to a third party (name and location of the person to whom the right (claim) has been transferred under the agreement on provision of a micro-loan), the full scope of the transferred rights (requirements). According to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim.

According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices. 152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, stipulating that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff fails to comply with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure is not lost and preserved. Considering Articles 152, 279 of the CPC RK and art. 402 of the Civil Code of the Republic of Kazakhstan, on October 17, 2020, we sent a pre-trial claim to the Lender, but to this day we have not received any response. In accordance with Part 1 of Article 715 of the Civil Code, under a loan agreement, one party (the lender) transfers, and in cases stipulated by the Civil Code or the agreement, undertakes to transfer ownership (economic management, operational management) to the other party (the borrower) money or things defined by generic characteristics, and the borrower undertakes to return the same amount of money to the lender in a timely manner. or an equal number of items of the same kind and quality. We would like to draw your attention to the fact that the actions of the Lender in this situation are unlawful for the following reasons: In accordance with paragraph 1 of Article 728 of the Civil Code of the Republic of Kazakhstan, when concluding a loan agreement, the lender is a bank or other legal entity licensed by an authorized state body to provide loans in cash. According to paragraph 5 of Article 1 of the Law of the Republic of Kazakhstan "On Microfinance Organizations", a microcredit is money provided by a microfinance organization to a borrower in the national currency of the Republic of Kazakhstan in the amount and in accordance with the procedure established by this Law, on the terms of payment, urgency and repayment. In accordance with paragraph 1 of Article 24 of the Law of the Republic of Kazakhstan "On Microfinance Organizations" (hereinafter referred to as the Law), legal entities that are not registered as microfinance organizations are not entitled to carry out business activities to provide micro–loans. By virtue of clause 1 of Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law. According to clause 1 of Article 383 of the Civil Code of the Republic of Kazakhstan, the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion. By virtue of clause 1 of Article 159 of the Civil Code, a transaction made without obtaining the necessary permission is void. It follows from Clauses 2 and 3 of Articles 157-1 of the Civil Code that an invalid transaction does not entail legal consequences, except for those related to its invalidity.

Recognition of the contract of the MKO MFO for a microcredit microloan as invalid, to collect the amount of expenses for the payment of state fees and representative expenses

In case of invalidity of the transaction, each of the parties is obliged to return to the other everything received under the transaction. In such circumstances, the Defendant is not entitled to calculate the amount of remuneration, penalties and penalties under the loan agreement, due to the nullity of the said loan agreement in the relevant part. By virtue of Part 2 of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms. In accordance with paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. In accordance with paragraph 4 of art. 9 of the Civil Code of the Republic of Kazakhstan, a person whose right has been violated may demand full compensation for damages caused to him, unless otherwise provided by legislative acts or a contract. Losses mean expenses that are incurred or should be incurred by a person whose right has been violated, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of turnover if his right had not been violated (lost profits). Also according to art. 103 CPC RK, where the procedure for payment and the amount of the state duty, as well as the grounds for exemption from its payment are determined by the Code of the Republic of Kazakhstan "On Taxes and Other mandatory Payments to the Budget" (Tax Code). Payment of the state fee to the budget must be confirmed by payment or cash documents, and when payments are made via ATMs, electronic terminals, remote communication channels and the electronic government payment gateway, by checks and receipts on paper or in electronic form. In these circumstances, the Lender was required to return funds in the amount of 1 mci for the payment of State duty, in accordance with paragraph 7, paragraph 1, Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code). In accordance with Part 1 of article.8 of the CPC RK, everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests. Based on the above and in accordance with art. 159 of the Civil Code of the Republic of Kazakhstan,

They asked the Court:

Invalidate the Contract-2, concluded for 135,000 tenge dated August 20, 2020, concluded between ASHT and Sofi Finance Microfinance Organization LLP;

To assign to Sofi Finance Microfinance Organization LLP the obligation to eliminate in full the violations of the Plaintiff's rights;

To collect from Sofi Finance Microfinance Organization LLP in favor of ASH.T., the costs of paying the state fee, taking into account the bank commission in the amount of 2928 tenge;

Collect from Sofi Finance Microfinance Organization LLP in favor of ASH.T., representative expenses in the amount of 70,000 (seventy thousand) tenge.

 On February 23, 2021, the Medeu District Court of Almaty, having considered in open court a civil case On invalidation of the loan agreement in part 110,000 tenge, found that according to Part 1 of Article 724 of the Civil Code, the borrower has the right to challenge the loan agreement, proving that the loan object (money or things) was not actually received by him from the lender. or received in a smaller amount or quantity than specified in the contract. In accordance with paragraph 2 of Article 157 of the Civil Code, a transaction is declared invalid if the requirements for the form, content and participants of the transaction, as well as for their freedom of expression, are violated on the grounds established by this Code or other legislative acts. Paragraph 1 of Article 158 of the Civil Code stipulates that a transaction, the content of which does not comply with the requirements of the law, as well as a transaction made for a purpose knowingly contrary to the principles of law and order, is contested and may be declared invalid by a court, unless otherwise provided by this Code and other legislative acts of the Republic of Kazakhstan. Thus, guided by the provision of the above-mentioned norm, it should be understood that the basis for recognizing ASH.T. regarding the receipt of 110,000 tenge of the loan agreement, it is invalid that the transaction was made for a purpose that is obviously contrary to the principles of law and order and expression of will, and is contested and may be declared invalid by a court. At the same time, by virtue of Article 72 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the defendant did not provide the court with refuting evidence of the plaintiff's will and intentions. In accordance with Article 224 of Part 2 of the CPC, the court bases its decision only on the evidence presented by the parties and examined at the court session. By virtue of the above, the court concludes that the plaintiff's claims for invalidation of the loan agreement regarding receipt of 110,000 tenge are justified. In accordance with Article 109 of Part 1 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court awards to the party in favor of which the decision was made, on the other hand, all court costs incurred in the case. In terms of reimbursement of expenses for representation in court, the court considers it fair to reimburse expenses in the amount of 20,000 tenge, Guided by Articles 223-226, 229 of the CPC, the court DECIDED: To satisfy the claim of the ASHT. To invalidate the loan agreement No.902674006 dated August 20, 2020, concluded between ASHT and the limited Liability Partnership SofiFinance Microfinance Organization (Sofi Finance) in terms of receiving 110,000 (one hundred ten thousand) tenge.

To collect from the limited liability Partnership Microfinance Organization SofiFinance in favor of AST the amount of expenses for the payment of state duty in the amount of 1,389 (one thousand three hundred and eighty-nine) tenge and expenses for a representative in the amount of 20,000 (twenty thousand) tenge. 

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